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Man who pleaded guilty to credit card fraud scheme loses appeal

ANNIE YAMSON
Special to the Legal News

Published: October 8, 2015

A federal court recently ruled that James Gibson, who pleaded guilty to credit card fraud violations, could not appeal the denial of his motion to suppress evidence of his guilt.

Gibson entered his pleas in the U.S. District Court for the Northern District of Ohio and proceeded to appeal to the 6th U.S. Circuit Court of Appeals, which ruled that he did not properly preserve the issue for appellate review.

Case summary states that Gibson flew from Florida to Cleveland in December 2012 to meet with Lansford Beuns. The pair checked into a local hotel and set to work creating counterfeit credit cards.

Court documents state that Beuns supplied an embosser and a magnetic strip encoder while Gibson supplied a batch of stolen credit card numbers.

Their project completed, the men proceeded to charge thousands of dollars to the stolen accounts at clothing and electronics stores in Cleveland.

The spree came to an end when Beuns and Gibson were unfortunate enough to get pulled over by a K-9 unit.

With Beuns at the driver’s seat, officer Michael Gerardi pulled the car over for a traffic violation, ran a criminal-history check and brought out his dog, Bishk’e, to perform a drug sniff on the car.

Bishk’e alerted to the presence of drugs, leading to a search of the vehicle and the discovery of the fake credit cards and bags of recently purchased merchandise.

The Secret Service subsequently used the evidence seized from the car to obtain a warrant for Gibson’s and Beuns’ hotel room. There, they seized the embosser and other counterfeiting tools.

Gibson was indicted by grand jury on four counts of access-device fraud, conspiracy to commit access-device fraud and aiding and abetting access-device fraud.

He moved to suppress the government’s evidence, citing an unlawful search and seizure, but the district court overruled the motion.

Gibson ended up pleading guilty to the charges without the benefit of a plea agreement, although he did enter into a civil forfeiture agreement with the government which stipulated that if his convictions are reversed on appeal and subsequently dismissed, then the government would return Gibson’s seized property.

Gibson was ultimately sentenced to 18 months in prison.

In the appeal that followed, he asked a three-judge appellate panel to review the district court’s decision to deny his motion to suppress.

“But Gibson pled guilty unconditionally, without reserving the right to appeal the denial of his suppression motion,” Judge Raymond Kethledge wrote on behalf of the court of appeals. “And a voluntary and unconditional guilty plea bars any subsequent non-jurisdictional attack on the conviction.”

The appellate panel held that it could not consider Gibson’s Fourth Amendment claim, though he asked the judges to do otherwise.

“Gibson seeks to evade this rule by asserting that his civil forfeiture agreement reflects an understanding among the parties that Gibson’s plea was conditioned on his ability to appeal the denial of his suppression motion,” Kethledge wrote. “But a civil forfeiture agreement is the wrong place to preserve an issue for criminal appeal.”

If Gibson wanted to preserve his suppression claim, he could only have done so through a plea agreement, according to the appellate panel, but since he entered an unconditional plea, he waived that right.

Gibson also argued that his counsel was ineffective for failing to organize a conditional plea but the court of appeals dismissed the argument, noting that “as a general rule, a defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal.”

The court of appeals concluded by affirming the judgment of the district court.

Judges Karen Moore and Ralph Guy joined Kethledge to form the majority.

The case is cited United States v. Gibson, case No. 14-3327.

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